Patna High Court
Rajkumar Singh vs Uchit Tatwa on 13 December, 1950
Equivalent citations: AIR1951PAT454, AIR 1951 PATNA 454
JUDGMENT Rai, J.
1. The pltf has filed this appeal against the judgment & the decree of the Addl Subordinate J., Bhagalpur, reversing those of the Munsif of Madhipura.
2. The pltf filed the suit for declaration of his title to & recovery of possession of 13 kathas & 8 dhurs of land out of an area of 1 bigha 5 khata which he claimed to have been sold to him by a registered sale deed dated 12-1-1948. There are some other facts relevant to the case which may shortly be stated as follows. One Janak & his cousin Uchit jointly took settlement of about 3 bighas 9 kathas 18 dhurs of land in the name of Janak. On 8-12- 194V, Janak sold 1 bigha 5 kathas to the deft for Rs. 1000/-. The deft was to discharge the mtge debt over this property which was en cumbered by a mtge transaction dated 29-4- 1940, for a sum of Rs. 200/-. The pltf was the mtgee under the said mtge bond. The case of the pltf is that after the execution of the sale deed on 12-1-1948, he paid Rs. 313/- in cash, Rs. 337/- was to be set off towards the dues of the mtge bond of 29-4-1940, & Rs. 50/- was to be paid at the time of receiving the receipt from the deft. As the pltf fell short of the amount of Rs. 50/- at the registration office, he agreed to pay it to the deft at the village & get back the receipt.
3. It appears that there developed some es tranged feeling between the pltf & the deft on 12-1-1948, which appears from the circumstances enumerated below. On 13-1-1948, the deft lodged a sanha at the police station which runs as follows:
"Entry No. 177 at 12 hours. Uchit Tatwa, son of Bansi Tatwa of Dhurgaon Mainirathi reported that his one head of bullock of the following description strayed from Madhipura since 12-1-1948."
The sanha thereafter gave the description of the bullock, its price being mentioned as Rs. 250/-. On 13-1-1948, a notice (Ex. 4 C on the record) was sent to the pltf by a pleader on behalf of the deft calling upon him to pay Rs. 250/- as the price of the bullock which the pltf had borrowed from the deft & which, according to the information of the pltf had strayed away. On 20-1-1948, a notice was given by a pleader of the deft calling upon the pltf to pay the consideration money of Rs. 600/-. The relevant portion of the notice runs as follows:
"From the instruction of my client, it appears to me that you got a sale deed executed by my client in respect of 13 kathas & 8 dhurs of land for a cash consideration of Rs. 600/-. But the consideration money was not paid at the time of the execution of the sale deed & you asked for the receipt from my client to take back the deed. That my client did not make over the receipt. Thereupon, you left the place in great annoyance & kept with yourself the former sale deed of my client. My client always asked you for payment of the consideration money & for return of the former sale deed. But you did not pay the money. Hence, through this notice you are hereby, informed to pay the consideration money of Rs. 600/- & to return back the former sale deed to my client within two weeks from the date of the receipt of the notice & to obtain the receipt for the withdrawal of the sale deed, otherwise, my client will have the aforesaid sale deed "cancelled". Be it known, that you did not derive any title to the land on the ground of the execution of the sale deed. The said sale deed neither was nor would be valid without the passing of the consideration money."
The present suit was filed by the pltf on 21-1-1948.
4. The deft contested the suit. His case was that it was agreed between the parties that, after payment of the full consideration money, the pltf would come in possession of the pro perty. He further contended that the terms noted in the sale deed had not been explained to him. He further challenged the case of the pltf that only Rs. 50/- had remained to be paid to the deft out of the consideration money of the sale deed.
5. The trial Ct accepted the case of the pltf & decreed the suit with costs. On appeal the Addl Sub-ordinate Judge has taken a different view of the evidence. He has come to the con clusion that the pltf's case of payment of Rs. 213/- at the time of the execution of the sale deed has not been substantiated. He has fur ther come to the conclusion that, as there was no endorsement on the mtge bond, it could not be deemed to have been satisfied. He has fur ther held that title did not pass by execution of the document, which was to pass on payment of the consideration money. In that view of the matter, he allowed the appeal & dismissed the suit.
6. Before this Ct Mr. S. N. Dutta, the- learend counsel for the applt has contended that the finding of the lower appellate Ct regarding: the non-payment of Rs. 213/- at the time of the execution of the sale deed as is the case of the pltf is vitiated because it has relied upon the evidence of defence witnesses 2 & 3 to hold that in fact Rs. 213 was not paid at the time of the execution of the sale deed, though those two witnesses had admitted in their evidence that they had arrived at the place at a later stage. They, according to him, were not competent to disprove the case or the pltf that he had paid Rs. 213/- at the time of the execution of the bond. He urged that the case should be re manded to the lower appellate Ct for fresh hearing. Prom the judgment of the learned Addl Sub-ordinate J. it appears, however, that he has come to that conclusion by taking into consideration other pieces of evidence as well apart from the evidence of defence witnesses 2 & 3. The relevant portion of his finding runs as follows:
"I have given a serious consideration on the oral evidence in this case. There seems no reason to disbelieve the evidence of D. Ws. 2. & 3 who are admittedly the attesting witnesses, of this document. Besides, the circumstances, discussed above disprove payment of Rs. 213/-at the time of execution of the sale deed. I disagree with the finding of the learned Munsif & accepting the oral evidence on behalf of the deft I hold that Rs. 213/- was not paid at the time of execution."
In my opinion, it is not a case which I should remand for reconsideration of the evidence on the point of payment of Rs. 213/- at the time of the execution of the sale deed as is the case of the pltf.
7. But as regards the other findings of the learned Addl Subordinate Judge, I am inclined to accept the submission of the learned counsel for the applt. Mr. Dutt has contended that from the sale deed itself it is clear that out of the consideration money of Rs. 600/-, Rs. 337/- was set off towards the mtge dues of the pltf. So, according to him, even if the finding of the lower appellate Ct regarding the non-pay ment of Rs. 213/- at the time of the execution of the bond were to stand, it was a case where a substantial portion of the consideration money had in fact been paid. The relevant portion of the sale deed dated 12-1-1948, runs as follows :
"I, the executant, require money for payment of mtge-debt under a deed executed by Janak Podar in favour of Babu Rajkumar Singh, purchaser of Schudle 2 (i.e.) a sum of Rs. 200/-(principal) besides interest, in all Rs. 337/-(three hundred & thirty seven); I am also in urgent need of money for household expenses. As a matter of fact, the aforesaid mahajan is ready to file a suit also which, if instituted, will cause great loss to me. Therefore, I, the executant, have of my accord & free will, in a sound state of body & mind, without coercion, pressure & intimidation on the part of anybody, executed this sale deed in favour of the aforesaid claimants in respect of the land specified above in Sch. 2 for a consideration of Rs. 600/-, half of which comes to Rs. 300/- & received the full amount in this way that I left Rs. 337/- (three hundred & thirty seven) in deposit with the aforesaid claimant (or vendee). The aforesaid vendee will set off the said amount, against the mtge debt & keep the mtge bond with himself as evidence of payment & received Rs. 263/- (two hundred & sixty three) in cash. Thus, I have received Rs. 600/- (six hundred). Now, not a single farthing is due from the aforesaid claimant. I, the executant, or my heirs & representatives, shall not put forth any claim on the score of non-payment of the aforesaid consideration money. If at any time (I, the executant, my heirs or representatives) do make any such claim, it is & will be deemed null & void. I have put the said vendee in possession & occupation of the vended property in my place. The aforesaid claimant should on payment of the zamindar's rent appropriate the produce of the aforesaid land, generation after generation, both in the male & female lines."
8. Mr. Dutt has contended that from the recital in the sale deed as quoted above it is clear that the non-endorsement of the pay ment of Rs. 337/- on the back of the mtge bond in question would not change the position. The sale deed whose validity the pltf has accepted clearly shows that Rs. 337/- was to go to dis charge the dues of the pltf. The mtge bond was to be kept in possession of the pltf him self. Hence, according to him, non-endorsement or non-tearing of the mtge bond would not change the position. In my opinion, there is much substance in the submission of the learned counsel. To me it appears that Rs. 337/- will be deemed to have been paid out of the consideration o,f Rs. 600/- which was the consideration under the sale deed in question. Mr. Dutta has further submitted that, according to the provisions of Section 54, T. P. Act, his client would be deemed to have acquired interest in the property vended. He further stressed that the pltf's claim for possession cannot be defeated for non-payment of the balance of the consideration money. Mr. Dutt further relied upon several decisions of this Ct in support of his contention that title would be deemed to have passed to the purchaser if part payment of the consideration is established. He relied upon the cases of 'Ramdhari Rai v. Gorakh Rai', 10 Pat 264: (AIR (18) 1931 Pat 236); 'Radhamohan v. Bipin Behari', 17 Pat 318: (AIR (25) 1938 Pat 505); & 'Pirtam Singh v. Jagannath', 27 PLT 426: (AIR (34) 1947 Pat 1). He contended that unless there was an intention on the part of the parties to the contract that title would not pass until the entire consideration money had in fact been paid, the title of his client could not be defeated. He further contended that he was all along anxious to pay the balance of the consideration money. In fact, the present suit was filed within nine days of the execution of the sale deed which showed the anxiety of his client to complete the transaction by paying the balance of the consideration money. The cases referred to above do support the contention of the learned counsel. In my opinion, in the circum stances of the present case title would be deemed to have passed by the execution & registration of the bond.
9. Mr. Dutt further contended that from the notice (Ex. 4 (b)) which was sent by a pleader to the pltf, it was clear that there was no such intention that the title would not pass until the entire consideration had been paid. He referred to the various passages from the said notice which has already been quoted in the judgment. From the wording of this notice it is clear that there is no mention in it that it was the intention of the parties that title would not pass until the entire consideration money had been paid, though there is a men tion that title to the land would not pass on the ground of the execution of the sale deed. But that is a different thing altogether. If in fact there was such an intention, it must have been mentioned in the notice sent by the pleader which was a very important aspect of the con tract between the parties.
10. The learned counsel for the resp, how ever, relied upon the case of 'Md. Murtaza v. Abdul Rahman', 27 Pat 122: (AIR (36) 1949 Pat 364). He contended that almost under similar circumstances a D. B. of this Ct had held in that case that title would not be deemed to have passed. He in that connection drew my attention to the judgment of, Meredith, J., in that case the relevant portion of which runs as follows:
"Once it is shown that what is stated in the document, though clear in itself, is not correct in relation to the existing circumstances, or unmeaning in reference to existing facts, then the problem arises as to what, by making these incorrect statements, the parties really meant.
The statements being incorrect a latent ambiguity arises. In this view there is a latent ambiguity in the present document, & that being so, we are, in my view, entitled to turn to extraneous evidence. Once we can do that, we can take into consideration the fact that the consideration was not paid, 'as bearing on the intention of the parties', & we can also take into consideration two other admitted facts, that the vendor retained the sale deed all along & never made it over to the vendee, & possession, though stated to have been delivered was never delivered."
It may be noted that the suit which had then come up in appeal before this Ct had been filed about eleven months after the execution of the sale deed in question. Therefore, the circum- stances, the factum of non-delivery of the original document of sale, & non-delivery of possession, were considered relevant for the purposes of determining what was the intention of the parties. In the present case the suit has been filed only nine days after the sale, and, hence, those circumstances are of not much importance here.
11. It, therefore, cannot be said that the circumstances lead to the conclusion that it was the intention of the parties that title would not pass until the entire consideration money had been paid. In the case of 'Md. Murtaza v. Abdul Rahman', 27 Pat 122: (AIR (36) 1949 Pat 354) & in the case of 'Motilal v. Ugrah Narain', (AIR (37) 1950 Pat 288) no consideration had passed at all.
12. As regards the case of 'Motilal Sahu v. Ugrah Narain', (AIR (37) 1950 Pat 288) it may be mentioned that there the suit had been filed three years after the execution of the sale deedx & so the delay in bringing the suit in that case might have been considered as a circumstance to show that it was not the intention of the parties that title would pass after the execution of the sale deed. The learned counsel for the resp relied upon the case of 'Raju Mahton v. Hossaini Mian', 59 IC 171: (AIR (7) 1920 Pat 774). In that case, however, the suit was filed ten years after the execution of the sale deed. Jwala Prasad, J., while delivering the judgment, observed as follows:
"It appears to me that the mere registration of the document in this case did not pass the title to the pltfs. Although more than 10 years after the execution of the sale deed have elapsed no attempt was made until the institution of the present suit by the pltfs to recover possession of the property or to enforce their right under the deed. The finding of the Ct that they were never in possession shows clearly that they never thought that they had acquired any title under the sale deed in question. It is impossible to conceive that a vendee would sleep over his right after paying the consideration money, for many years.
"I do not propose to discuss the various authorities on the point, for the. principle appears to be simple & well established. Each case has to be determined according to the circumstances of that case, showing the intention of the parties."
The learned counsel for the resp further relied upon the case of 'Rasikananda v. Gangadhar', (1 Cut LT 1), but the facts & circumstances of that case are distinguishable. The relevant portion of the judgment of their Lordships in that case may be quoted as follows:
"The contract having been reduced into writ ing its terms must be sought from a considera tion of the writing itself & having regard to the words which I have quoted that after taking from you the balance of Rs. 900/- we make you owner in possession thereof they clearly imply that the transfer of title & the payment of the Rs. 900/- were to be contem poraneous This is a simple case of a con tract reduced into writing the terms of which are to be found from study of the writing & nothing else & to my mind the terms of the writing are quite specific.
This really concludes the case. The pltfs have not parted with their money nor have the defts parted with their title. Accordingly to my mind the suit should have dismissed." But in the present case there is no such specific term in the sale deed in question. Hence, this case cannot come to the rescue of the deft-resp.
13. In my view, the finding of the learned Addl Sub-ordinate Judge that the title would not be deemed to have passed to the pltf after the execution & registration of the document is not correct & must be set aside. The result is that the appeal succeeds in part & the suit of the pltf is decreed in a modified form. He is entitled to get possession after depositing the balance of the consideration money. As he has already deposited Rs. 50/- he may further deposit the remaining sum of Rs. 213/- before taking delivery of possession. Mr. Dutt is pre pared to deposit the money in this Ct to the credit of the deft-resp. He is permitted to do so within one month from today. In the circumstances of the present case each party will bear its own costs throughout.